I have returned to the mothership after a great trip to Worcester, Massachusetts earlier this week to speak at Assumption College for its Constitution Day event, albeit a few days after September 17th. The students and faculty at the event were excellent. I thought it worth mentioning that the students in attendance were fundamentally sound in mind and not overwhelmed with ideological convictions, which proved excellent for the talk I delivered. In short, there’s a solid liberal arts tradition at Assumption. And that’s all to the credit of the faculty. If you’re looking for an education in the Humanities for yourself or for a son or daughter, then I would urge considering Assumption. They also permitted me to indulge in a bit of an off-road lecture on Orestes Brownson’s case for political loyalty as the crucial underpinning of our constitutional order. Many thanks to Prof. Bernard Dobski, Chairman of the Political Science Department, for the invitation and to Brother Greg for a wonderful introduction. My talk is below:
Archives for September 2016
Over at our sister site, the Library of Economics and Liberty, David Henderson has a post taking some issue with my view that the Obama administration’s antitrust division should not have agreed to the US Airways/American Airlines merger. He argues that the better course is not to block the merger and instead to permit the building of more airport landing slots and allow foreign airlines to fly between U.S. cities.
I agree entirely with these deregulatory measures. Indeed in prior posts, I have called for some of them. But the soundness of such policy proposals does not advance the case for this merger. The Justice Department has no power to deregulate airport construction; such zoning is controlled by state and local authorities. Even foreign airline entry is controlled by another agency: the Department of Transportation. By law and competition theory, the Department should take the world as it finds it.
As a matter of law, the antitrust merger guidelines tell competition regulators to consider ease of entry as part of assessing whether an industry is too concentrated to permit a given merger. And these guidelines make sense. If entry is easy, concentration of incumbents becomes less relevant, because they remain price takers, deterred by fear of new competitors from raising prices above competitive levels. But when entry is difficult, that crucial discipline is absent.
More generally, antitrust regulators cannot assume a world that does not exist, because that premise makes the perfect the enemy of the good.
The Office for Civil Rights (OCR) periodically sends “Dear Colleague” letters to higher ed leaders, suggesting ways in which their institutions might avoid running afoul of made-up civil rights requirements. Said leaders (presidents, provosts, etc) periodically send “Dear Faculty Colleague” letters, not to intimidate but to—actually, I don’t know what. I’ve cobbled together a letter from missives you can find on the internet (so it’s ferreal; only PCU is made up):
Hillbilly Elegy is J.D. Vance’s raw, uncensored, personal history of his Scots-Irish family who struggled in Ohio after leaving their Kentucky home. Vance grew up amid domestic strife and a never-ending cycle of new stepfathers, his family weighed down by dwindling economic prospects and drug dependency. A Marine veteran who graduated from Ohio State and Yale Law, Vance considers his upbringing from the vantage point of a San Francisco investment firm, separated by space but not by emotion or memory—or accent. Fraught relationships continue to pull him back to his small-town Ohio roots, and convince him that the pat solutions of the Left and the Right are inadequate to the problems of America’s forgotten and left behind.
Jason Brennan’s provocative new book, Against Democracy, divides people into three groups based on their orientation to politics: “Hobbits,” who are apathetic and ignorant; “Hooligans,” who are engaged but hopelessly biased, convinced that fans of other political teams are “stupid, evil, selfish, or at best, deeply misguided”; and “Vulcans,” who “think scientifically and rationally about politics” and whose “opinions are strongly grounded in social science and philosophy.”
In a recent post on Law and Liberty, Mark Pulliam lambasted the idea of a more “rigorous standard of judicial review, across the board, when laws are challenged” called “judicial engagement.” He claims that those of us who advocate judicial engagement presume that judges are untainted by bias or personal predilections whereas they “are just government officials who wear robes, no different (and certainly no more noble or wise) than any other functionary of the state.”
Judicial engagement does not make any such presumption. Judges are no different from any other people. But the office of a judge is different. A judge has different incentives than a legislator because of the nature of his or her office, which renders him or her less vulnerable to manipulation by interest groups or political pressure.
If Lenore Skenazy’s Free-Range Kids (2009) was the book that told parents it was okay to liberate their children from the overprotective parenting expectations of their generation, Abby Schachter’s new book may be the one that tells them to liberate themselves from overprotection by government.
At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.
In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty. The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution.
For instance, before the War Southern states tried to gag discussion of petitions on slavery on the House floor and banish criticism of the peculiar institution from the federal mails, in obvious violation of constitutional guarantees. Slavery supporters also burned down abolition newspapers. They tried to ban books that argued that the wages of Southerners who did not own slaves were decreased by the institution of slavery. As Michael Kent Curtis noted, these acts allowed the North to reframe the debate about slavery as one about established constitutional liberties and the freedom of labor generally.
As this post goes up I’m off to Germany, this time for some actual work. In cooperation with the Council on Public Policy (a German think tank run by my buddy Michael Zoeller), the GMU Law & Economics Center runs something called the Transatlantic Law Forum (TLF). We assemble legal scholars, judges, and lawyers from both sides of the pond and the blessed isle in-between to discuss serious, salient questions related to constitutionalism and the rule of law. Our conferences alternate between GMU’s Antonin Scalia Law School and Bucerius Law School in Hamburg (Germany’s only private law school, and therefore far and away the best). Last year’s event at ASLS, on “The Administrative State and its Law,” produced terrific essays that will appear in a forthcoming issue of the George Mason Law Review; I’ll blog them.
Aristotle teaches that justice is necessary where friendship has failed. His point is that the strictures of the law need only be imposed where ordinary, informal, face-to-face interactions collapse. Lawsuits—and, for that matter, laws—thus begin where comity and common sense end. That is worth keeping in mind as the first frontal constitutional challenge to the U.S. Department of Education’s attempt to impose a one-size-fits-all approach to transgender access to intimate facilities—bathrooms, locker rooms, and showers—works its way through the courts.